Jackson ex dem. Harder v. Moyer , 13 Johns. 531 ( 1816 )

Per Curiam.

The lessors of the plaintiff are six of the heirs at law of John, Henry Moyer, deceased, and the defendant is the only remaining heir. It is admitted that John Henry Moyer died seised of the premises in question. The lessors claim, as his heirs at law, six sevenths of the premises in question, and the defendant claims the whole, under the will of John Henry Moyer; and the only question is, whether the devise to the defendant extends to the premises. The words of the devise are, “ I give and bequeath unto my son, John Henry, my farm whereon I now live, &c. The premises, as appears by the testimony, are about 15 or 20 acres of land, with a dwelling-house thereon separate, and apart from the farm of the testator which he occupied, and not used by him as a part of the farm, but had, for 40 years, been let out as a separate and distinct lot. Under these circumstances, the premises could, in no sense, be considered a part of the farm whereon the testator lived, and, of course, not embraced by the devise. This is, a case very analogous to that of Jacksons. Sill, (11 Johns. Rep. 201.,) and the principles then settled must govern the present decision. The plaintiff must have judgment for six sevenths of the premises.

Judgment accordingly.